LITTLE ROCK, Ark. - The Arkansas Supreme Court affirmed $75 million in damages to six men who claim they suffered permanent injuries from inhaling acid fumes after responding to a tractor-trailer accident, a verdict dissenting justices said “replaces law with wishful thinking.”
The plaintiffs – including two police officers -- presented less than $16,000 in medical bills and the three who received the biggest portions of the award presented no evidence of medical expenses at all. The court majority said the jury could conclude from their description of breathing difficulties that they deserved millions in compensation.
Old Dominion Freight Line argued the verdict should have been overturned because there was no evidence of permanent injury or causation and the verdict violated the “frequency, regularity, and proximity” test used in other toxic-tort lawsuits including asbestos. But the Supreme Court said that heightened level of proof isn’t required in every toxic-tort case.
“There is a significant difference between a case in which the plaintiff’s injuries are the result of long-term exposure to a toxic substance and a case involving isolated exposure,” the court said in a Nov. 5 opinion by Justice Courtney Rae Hudson.
Old Dominion driver Aaron Foster was hauling a double trailer in 2018 when a pickup driven by Charles Henley crossed the center line head-on into his vehicle, causing it to overturn and catch fire. Henley died on the scene but Foster escaped by breaking a window and climbing out of the cab.
One of the trailers was carrying a 565-pound barrel of formic acid, which weighed less than the 1,001 pounds that trigger a required hazardous-materials placard under federal law.
Arkansas State Police Trooper Keith Ponder arrived and later testified he asked Foster if the truck was carrying hazardous materials, a claim Foster and another witness said was false.
Trooper Frank McMillion arrived a few minutes later and noticed a peculiar smell that made him feel lightheaded, dizzy and nauseous.
Allen Jones with the St. Francis County Sheriff’s Office arrived several hours later, along with Bengi Bokker, Hunter Bokker, Zack Billingsley, and Carlton Pettus, employees of a local towing company hired to clean up the mess. All but Ponder sued Old Dominion and Foster, the driver who narrowly escaped with his life, saying they inhaled dangerous acid fumes that permanently affected their breathing.
Billingsly said it felt “as if somebody came up to you with a wet washcloth and stuck it over your nose and mouth and just took your breath completely away.” Pettus said it felt “like somebody stuck a sack” over his head.
The trial judge rejected Old Dominion’s arguments for a directed verdict and the jury awarded $75 million in damages, including $5 million each for three plaintiffs who presented medical bills and $25 million, $20 million and $15 million for those who didn’t.
Old Dominion appealed the judgment as excessive, and an appeals court held the damages weren’t supported by the evidence and ordered a new trial. Old Dominion appealed to the Arkansas Supreme Court, which reversed the appeals court and awarded plaintiffs the full $75 million.
Old Dominion argued the plaintiffs needed to provide evidence they were exposed to enough toxic fumes to suffer injury. Their medical expert testified he wasn’t aware of any studies showing formic acid fumes can cause permanent lung injury, but said he consulted a safety data sheet and concluded the acid “sounds like” something that could cause their symptoms.
McMillion reported shortness of breath but passed the fitness tests for his job
Jones also reported breathing problems but had a history of smoking. Hunter Bokker reported he hasn’t lost income and hunts 30 days a year, while Billingsley still delivers for UPS.
None of that justifies overriding the jury’s determination the men were entitled to millions of dollars in damages, Justice Hudson wrote.
“It is only when the inferential leap from the evidence to the conclusion is too great that courts will intervene to declare that juries may not speculate,” she wrote.
The majority rejected Old Dominion’s other complaints, including that the judgment was prohibited under the “fireman’s rule” preventing professional rescuers from suing private parties over their injuries. The towing firm employees weren’t paid or trained to clean up toxic sites and the trooper was trained to look for a hazardous-materials placard and evacuate the area if toxic substances were involved, the majority said.
Old Dominion also argued it was hurt by the plaintiff lawyers’ use of a “shadow jury” sitting in the courtroom who once caused the judge to interrupt trial because they were passing notes among themselves. Old Dominion argued the actual jurors might have interpreted their presence as “a show of support from the community” for the plaintiffs. The judge also denied Old Dominion’s motion to prohibit plaintiff lawyers from deploying the “reptile theory,” a well-known trial tactic in which jurors are urged to deliver a verdict to protect the public from harm.
Justice Cody Hiland dissented, joined by justices Rhonda Wood and Nicholas Bronni, saying “the law does not permit juries to convert transitory or moderate injuries into generational wealth, but that is what this court just allowed.”
“This is not a close case,” he wrote. “The verdict does not simply exceed reasonable compensation; it shocks the conscience in the most literal sense.”
The effect of such judgments can distort the legal process he said, because juries begin to understand their awards “will not be scrutinized against the evidence.”
This decision “replaces law with wishful thinking, evidence with assumption, and judgment with guesswork,” he concluded. “If this is what now passes for proof, then the word has lost its formerly concrete meaning. If this is what passes for justice, then I fear the concept is muddied beyond understanding.”
Munson, Rowlett, Moore and Boone represented Old Dominion, while Bailey & Oliver, Easley & Houseal and Brian G. Brooks represented the plaintiff.
